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CC Resolution No. 02-174CITY OF CUPERTINO RESOLUTION NO. 02-174 RESOLUTION AUTHORIZING AND DIRECTING THE PREPARATION AND EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS, AUTHORIZING THE PREPARATION AND DISTRIBUTION OF A PRELIMINARY OFFICIAL STATEMENT IN CONNECTION WITH THE OFFERING AND SALE OF CERTIFICATES OF PARTICIPATION RELATING THERETO, ELECTION TO GUARANTEE THE PAYMENT OF LEASE PAYMENTS FROM MOTOR VEHICLE LICENSE FEES AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS WITH RESPECT THERETO RESOLVED, by the City Council (the "Council") of City of Cupertino (the "City"), as follows: WHEREAS, the City has heretofore entered into a lease agreement, dated as of December 1, 1992 (the "1992A Lease"), with the Cupertino Public Facilities Corporation (the "Corporation") to refinance the acquisition, construction, installation and equipping of capital facilities within the geographic boundaries of the City originally financed in 1986 (the "1992A Project"), relating to $10,785,000 Certificates of Participation (1992 Refunding, Series A) (the "1992A Certificates"); WHEREAS, the City has also heretofore entered into a lease agreement, dated as of December 1, 1992 (the "1992B Lease"), with the Corporation to refinance the acquisition, construction, installation and equipping of capital facilities within the geographic boundaries of the City originally financed in 1989 and 1990 (collectively, the "1992B Project"), relating to $14,585,000 Certificates of Participation (1992 Refunding, Series B) (the "1992B Certificates"); WHEREAS, the City has also heretofore entered into a lease agreement, dated as of April 1, 1993 (the "1993 Lease" and, with the 1992A Lease and the 1992B Lease, the "Prior Leases"), with the Corporation to refinance the acquisition, construction, installation and equipping of capital facilities within the geographic boundaries of the City originally financed in 1991 (the "1993 Project" and, with the 1992A Project and the 1992B Project, the "Prior Projects"), relating to $36,600,000 Certificates of Participation (1993 Refunding, Series A) (the "1993 Certificates" and, with the 1992A Certificates and the 1992B certificates, the "Prior Certificates"); WHEREAS, the City, working together with the Corporation, proposes to enter into a lease financing and in connection therewith to (a) undertake the refinancing of the Prior Projects, refinance the City's obligations under the Prior Leases, and provide for the refunding and defeasance of the Prior Certificates, and (b) finance a portion of the acquisition, construction, installation and equipping of new City public library (the "2002 Project"); Resolution No. 02-174 Cupertino City Council Page 2 WHEREAS, it is in the public interest and for the public benefit that the City authorize and direct execution of the Lease Agreement (hereinafter defined) and certain other documents in connection therewith; WHEREAS, a preliminary official statement (the "Preliminary Official Statement") and an official notice of sale (the "Notice of Sale") containing information material to the offering and sale of the Certificates (hereinafter defined) have been prepared on behalf of the City; and WHEREAS, the documents specified below shall be filed with the City and the members of the Council, with the aid of its staff, shall review said documents; NOW, THEREFORE, it is hereby DECLARED and ORDERED, as follows: Section 1. Certificates of Participation (2002 Refinancing and Capital Improvement Project) (the "Certificates") are hereby authorized to be executed and delivered pursuant to the provisions of the Trust Agreement (hereinafter defined), so long as the total principal amount of the Lease Agreement does not exceed $65,000,000, so long as the maximum annual lease payments to be paid by the City under the Lease Agreement does not exceed $4,500,000, and so long as the term of the Lease Agreement does not extend beyond July 1, 2030. Section 2. The below-enumerated documents be and are hereby approved, and the Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official, is hereby authorized and directed to execute said documents, with such changes, insertions and omissions as may be approved by such official, and the City Clerk is hereby authorized and directed to attest to such official's signature: (a) a termination agreement, by and among the Corporation, the City and BNY Western Trust Company, as successor to First Interstate Bank of California, as trustee for the 1992A Certificates, providing for the termination of the legal documents relating to the 1992A Certificates; (b) a termination agreement, by and among the Corporation, the City and BNY Western Trust Company, as successor to First Interstate Bank of California, as trustee for the 1992B Certificates, providing for the termination of the legal documents relating to the 1992B Certificates; (c) a termination agreement, by and among the Corporation, the City and BNY Western Trust Company, as successor to First Interstate Bank of California, as trustee for the 1993 Certificates, providing for the termination of the legal documents relating to the 1993 Certificates; (d) a site and facility lease, between the City, as lessor, and the Corporation, as lessee; (e) a lease agreement, by and between the Corporation, as lessor, and the City, as lessee (the "Lease Agreement"); (f) a trust agreement, by and among the Corporation the City and BNY Western Trust Company, as trustee (the "Trust Agreement"), relating to the financing, and the execution and delivery of the Certificates; Resolution No. 02-174 Cupertino City Council Page 3 (f) an escrow deposit and trust agreement, by and between the City and BNY Western Trust Company, as escrow bank (the "Escrow Bank"), relating to provision for the payment of the City's obligations with respect to the 1992A Certificates; (g) an escrow deposit and trust agreement, by and between the City and the Escrow Bank, relating to provision for the payment of the City's obligations with respect to the 1992B Certificates; and (h) an escrow deposit and trust agreement, by and between the City and the Escrow Bank, relating to provision for the payment of the City's obligations with respect to the 1993 Certificates. Section 2. The Council hereby approves the Preliminary Official Statement, in substantially the form on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by the Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official. The Council authorizes and directs the Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official, to deem "final" pursuant to Rule 15c2-12 under the Securities Exchange Act of 1934 (the "Rule") the Preliminary Official Statement prior to its distribution by the City's financial advisor. Section 3. The City's financial advisor, on behalf of the City, and the Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, are authorized and directed to cause the Preliminary Official Statement and the Notice of Sale to be distributed to such municipal bond broker-dealers, to such banking institutions and to such other persons as may be interested in purchasing the Certificates therein offered for sale. Section 4. The Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official, is authorized and directed to cause the Preliminary Official Statement to be brought into the form of a final official statement (the "Final Official Statement") and to execute the Final Official Statement, dated as of the date of the sale of the Certificates, and a statement that the facts contained in the Final Official Statement, and any supplement or amendment thereto (which shall be deemed an original part thereof for the purpose of such statement) were, at the time of sale of the Certificates, true and correct in all material respects and that the Final Official Statement did not, on the date of sale of the Certificates, and does not, as of the date of delivery of the Certificates, contain any untrue statement of a material fact with respect to the City or omit to state material facts with respect to the City required to be stated where necessary to make any statement made therein not misleading in the light of the circumstances under which it was made. The Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official, shall take such further actions prior to the signing of the Final Official Statement as are deemed necessary or appropriate to verify the accuracy thereof. The execution of the final Official Statement, which shall include such changes and additions thereto deemed advisable by the Mayor, the City Manager, the Director of Administrative Services, or the designee of any such official, and Resolution No. 02-174 Cupertino City Council Page 4 such information permitted to be excluded from the Preliminary Official Statement pursuant to the Rule, shall be conclusive evidence of the approval of the final Official Statement by the City. Section 5. The Final Official Statement, when prepared, is approved for distribution in connection with the offering and sale of the Certificates. Section 6. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, is authorized and directed to execute the Notice of Sale on behalf of the City and to call for bids for the sale of the Certificates. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, is hereby delegated the authority to accept the best responsible bid for the purchase of the Certificates, determined in accordance with the Notice of Sale. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, is hereby authorized and directed to accept such bid, for and in the name of the City, by notice to the successful bidder. In the event two or more bids setting forth identical interest rates and premium, if any, are received, the Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, may exercise his or her own discretion and judgment in making the award and may award the Certificates on a pro rata basis in such denominations as he shall determine. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, may, in his or her discretion, reject any and all bids and waive any irregularity or informality in any bid. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, shall award the Certificates or reject all bids not later than 26 hours after the expiration of the time prescribed for the receipt of proposals unless such time of award is waived by the successful bidder. Section 7. The firm of E. Wagner & Associates, Inc., Pleasanton, California, is hereby retained as financial advisor to the City in connection with the execution and delivery of the Certificates. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, is hereby authorized and directed to execute an agreement for financial advisory services with such firm. The firm of Quint & Thimmig LLP, San Francisco, California, is hereby retained as special counsel to the City in connection with the execution and delivery of the Certificates. The Mayor, the City Manager, the Director of Administrative Services, or the assignee of any such official, is hereby authorized and directed to execute an agreement for legal services with such firm. Section 8. In accordance with the provisions of section 37351.5 of the California Government Code, the Council hereby elects to guarantee the lease payments required to be made under the Lease Agreement from moneys credited to the Motor Vehicle License Fee Account in the Transportation Tax Fund to which the City is entitled under Chapter 5 (commencing with section 11001) of Part 5 of Division 2 of the California Revenue and Taxation Code. The Mayor, the City Manager or the Director of Administrative Services, or the assignee of any such official, shall, prior to execution of the Lease Agreement, provide notice to the State Controller of such election, which notice shall include a schedule for payments to be made by the City under the Lease Agreement and shall Resolution No. 02-174 Cupertino City Council Page 5 identify the Trustee as the trustee selected by the City for the purposes of such section. In the event that, for any reason, the funds otherwise available to the City will not be sufficient to make any payment under the Lease Agreement at the time that payment is required, the Mayor, the City Manager or the Director of Administrative Services, or the assignee of any such officials, shall so notify the Trustee which shall immediately communicate that information to the affected owners of the Certificates and to the State Controller. Section 9. The Mayor, the City Manager, the Director of Administrative Services, the City Clerk and all other appropriate officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates as may be necessary to effect the purposes of this resolution and the financing herein authorized. Section 9. This Resolution shall take effect upon its adoption by this Council. I, the undersigned City Clerk of the City of Cupertino, hereby certify that the foregoing is a full, true and correct copy of a resolution duly adopted by the City Council of the City at a meeting thereof on the 16th day of September, 2002, by the following vote of the members thereof: Vote Members of the City Council AYES: NOES: None ABSTA1N: None ABSENT: None Lowenthal, Chang, James, Kwok, Sandoval Kimberly Smith~sC~y Clerk Richard Lowenthal, Mayor